“The Superfluous Fifteenth Amendment?”

Travis Crum has posted this draft on SSRN (forthcoming, Northwestern U. L. Rev.). Here is the abstract:

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both a statute and an amendment. Moderate Republicans rejected the statutory option because they believed that Congress lacked enforcement authority under the Fourteenth Amendment to impose voting qualifications on the States and that an amendment was the only politically viable option.

Given this historical evidence, this Article argues that the Fifteenth Amendment was a significant expansion of congressional authority to regulate voting rights in the States and that Congress’s Fifteenth Amendment enforcement authority is distinct from—and broader under current doctrine than—its Fourteenth Amendment enforcement authority. The Article V debate offers a persuasive reason for overturning Boerne’s congruence and proportionality test or, at a minimum, cabining it to the Fourteenth Amendment. Accordingly, laws enacted under Congress’s Fifteenth Amendment enforcement authority should be reviewed under Katzenbach’s rationality standard and the Voting Rights Act (VRA) would be on firmer constitutional ground.

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